Acquisition Alternatives An Overview of Texas John Zimmerman, Attorney Director, Acquisition Section Right of Way Division Texas Department of Transportation AASHTO/FHWA Austin 2005

GENERAL OUTLINE Historically: Negotiations, and if Fail, Proceed with Eminent Domain. Innovative Ways to Obtain Earlier Possession: Possession & Use Agreements Options & Other Early Acquisition NEPA issues and early acquisition

Traditional Acquisition Track Routine negotiations Possibly attempt administrative settlement Start eminent domain proceedings after negotiations fail Possession is only obtained after completing first stage of eminent domain (award amount deposited).

Some Texas Statistics Total parcels acquired last year 2,428 Percent acquired by deed 86.1% Deed percent includes about 400 parcels where administrative settlements were used Eminent domain overall percent was 13.9% Note that eminent domain rates are much higher in urban & metro areas

Obtaining Possession Earlier Possession & Use Agreement for Transportation Purposes: Is a “paid for” right of entry Up to 100% of State’s approved value Because it is paid for, it is irrevocable Allows utility relocation & construction to take place while negotiation/ E.D. proceed. Amount paid is credited off of E.D. Award.

Even Earlier Acquisition! Advanced or Early Acquisition—originally has been only on a parcel by parcel basis Hardship or Protective Buy Acquisition before final environmental release May lose Federal reimbursement May end up with surplus property if ultimate alignment does not include the parcel

Texas Pilot of Project Wide Advanced Acquisition Texas is currently working on obtaining approval to acquire all parcels for an entire project, or a good part of a project on an advanced (early) acquisition basis. Justification is for protective purchases as subdivisions are springing up. Only land acquisition, no utility or construction activities.

Options (recent legislation in Texas) Early knowledge of right of way staff of several possible alignments being considered can also possibly allow some protective actions to be taken to preserve undeveloped land early on. Obtain an option to purchase in future (Texas law allows prior to alignment determination)

NEPA issues and early acquisition This “option” procedure appears to not be in conflict with the NEPA process, as no right of way is actually being purchased. Only an option to purchase in the future May end up with more land than is needed May end up with unused parcel May pay for, and not exercise option

CONCLUSIONS AND FOOD FOR THOUGHT: CONTINUE TO DEVELOP AND ADVOCATE PROCEDURES WHERE VOLUNTARY POSSESSION CAN BE OBTAINED THROUGH AGREEMENT WITH A LANDOWNER WHILE NEGOTIATIONS OR EMINENT DOMAIN ARE TAKING PLACE. USE INOVATIVE WAYS TO BEGIN THE ACQUISITION PROCESSES EARLIER ON IN PROJECT DEVELOPMENT.

Contact Information JOHN ZIMMERMAN, TXDOT AASHTO/FHWA Austin 2005